Mautofu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1553
•7 June 2024
Mautofu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1553 (7 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1728
Re:Sitiveni Mautofu
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Evans
Date:7 June 2024
Place:Sydney
The reviewable decision dated 15 March 2024 is set aside and the mandatory cancellation of the Applicant’s visa is revoked.
…………………[sgd]……………………
Member S Evans
CATCHWORDS
MIGRATION – Applicant citizen of Tonga - visa mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) – substantial criminal record – Negligent driving (occasioning death) – History of related driving offences - review of decision to refuse to revoke mandatory cancellation under section 501CA(4) - another reason decision should be revoked - decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Pavey v Minister for Home Affairs [2019] AATA 4198
FYBR v Minister for Home Affairs [2019] FCAFC 185
Arachchi v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 1311
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
7 June 2024
Member S Evans
INTRODUCTION
Sitiveni Mautofu (the Applicant) was born in Tonga and is a citizen of that country. He migrated to Australia in August 1988 when he was 21 years old.[1] On 16 December 2022, he was convicted in the Local Court of New South Wales of Negligent driving (occasioning death) – 1st offence for which he was sentenced to a term of imprisonment of 12-months, with a non-parole period of nine months and disqualified from driving for three years.[2]
[1] G-Documents, G11, p.105; G12, p.110-112.
[2] G6, p.83-84.
On 1 May 2023, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test in 501(6) of the Act due to his substantial criminal record, pursuant to paragraphs 501(6)(a) and 7(c) of the Act.[3]
[3] G8, p.95-101.
On 15 March 2024, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused to exercise the discretion in subsection 501(3A) of the Act to revoke the cancellation of the Applicant’s visa. The decision of 15 March 2024 is the ‘reviewable decision’.[4]
[4] G4-G5, p.69-82.
For the reasons that follow, the reviewable decision will be set aside.
LAW AND POLICY
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is not satisfied that the person passes the character test due to the operation of subsections 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[5]
[5] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594.
The primary considerations in the Direction are:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Family violence committed by the non-citizen;
(3) The strength, nature and duration of ties of the non-citizen to Australia;
(4) The best interests of minor children in Australia affected by the decision; and
(5) The expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant, include, but are not limited to:
a) The legal consequences of the decision;
b) The extent of impediments if removed;
c) The impact on victims; and
d) The impact on Australian business interests.
ISSUE TO BE DETERMINED
It is not in dispute that the Applicant does not pass the character test as defined in section 501(7)(c) of the Act. As such, the issue for determination is whether there is ’another reason’ why the decision to cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.
EVIDENCE
Evidence of the Applicant
The Applicant gave evidence at the hearing, and in a statement dated 17 May 2024 he provided some background to his application:
I am a home owner in Australia. My wife and I do not own any land neither owning a house in Tonga (please refer to the confirmation from the Ministry of Land in Tonga attached). We have never intended to return to live in Tonga. Australia is home for my wife, our daughters and myself.
I have lived in Australia for almost 36 years to date. I lived in Tonga for 21 years then migrated to Australia in 1988, married my wife and applied for partner visa because she was already a permanent resident at the time, and have remained in Australia to date. I am 57 years old.
Even though I have never been banned from driving for life, but I am not going to drive again…
I am reassuring the Tribunal that I will never drive again even though it has been ruled that I will still be able to have a driving license later.
I believe that I will be employed by my last employer if the cancellation of my permanent resident visa is revoked.
The Australian Government spent so much funding on public transport. The public transport is very reliable. I am happy to use the public transport to my work. My wife health condition is deteriorating, she may not be able to drive me to work. I am so happy to use the public transport.
The impacts of the cancellation of my permanent resident visa in Australia, is similar to a death sentence especially on my daughters, my wife, and myself beside everyone else. The least to be mentioned, that we will be homeless because we have no land or house in Tonga.
My wife and I, and our eldest daughter have no employment ready for us in Tonga. If we are forced to return to Tonga, we will definitely have no income in Tonga.[6]
[errors in original]
[6] Applicant’s Materials, Filed 17 May 2024.
In evidence are letters of support and character references for the Applicant. Relatives including his brother Samisoni Mautofu, sisters Monika Radosavljevic and Otolose Hehea, nieces Mele Mautofu, Pipiena Hehea, and Monika Uhatafe, sister-in-law Meleseini Uhatafe, cousins Kaloni Sultana and Makineti Mautofu and nephew Pippin Fotu have provided written statements.[7] They universally speak to his hard work, compassion and devotion to his family.
[7] G20, p.150-168.
His neighbour, Robyn Boland, and colleague Gary Wilson have provided references in which they speak to the Applicant’s generosity and reliability.[8]
[8] Ibid.
Evidence of Halamehi Mautofu, the Applicant’s wife
Halamehi Mautofu provided letters of support, a statutory declaration dated 30 April 2024 and gave evidence at the hearing. She is 56 years-old and has lived in Australia since she was 14. She married the Applicant in 1992. Since the Applicant’s imprisonment, she has struggled emotionally and financially due to his absence.
Halamehi Mautofu considers Australia her home and feels a stranger in Tonga. Should the Applicant return to the community, she will ensure that he never drives again. She also acknowledged that the pain her husband has caused when driving has devastated ‘so many individuals including our own family’.[9]
[9] Applicant’s Materials, Filed 2 May 2024.
Evidence of Otolose Mautofu, the Applicant’s adult daughter
Otolose Mautofu provided statements in support of her father, most recently on 16 May 2024, and gave evidence at the hearing.[10] She believes her father is no longer a danger to the Australian community and says he experiences a great deal of guilt for his offending.
[10] Applicant’s Materials, Filed 17 May 2024.
She says her father ‘is a man who lives life through faith’, who is considered a father figure by his 12 nieces and nephews. Otolose Mautofu is concerned about the impact removing the Applicant will have on her younger sister, Child P. She believes his removal from Child P’s life would present emotional and practical implications for the child. Despite being physically separated since the Applicant was imprisoned in December 2022, Child P has formed a strong connection with the Applicant, which has been reinforced during regular visits and FaceTime calls. If the Applicant were to return to Tonga, she believes that Child P would be deprived the opportunity to be taught the morals the Applicant has instilled in her. She said the Applicant and his wife had made significant sacrifices to further her interests, and that they intend to do the same for Child P. She confirmed that the Applicant was the primary source of income for his immediate family, and she and her mother are having difficulty paying their expenses and bills without him.
Otolose Mautofu confirmed she is confident the Applicant will never drive again as he is mindful of the potential consequences and the victims of the accidents weigh heavily on his conscience. She is confident that those around him, including she and her mother, will do whatever is required to ensure he does not drive again.
Evidence of Kelepi Mautofu, the Applicant’s nephew
Kelepi Mautofu provided a written statement dated 17 May 2024 and gave evidence at the hearing.[11]
[11] Ibid.
He said that the Applicant has been a role model who helped him turn to Christ and away from harm. Through his work as ‘group leader’ at their Church, the Applicant continues to be a role model and help other young people in the Tongan community. The Applicant also plays an important role in the lives of his four daughters and does the blessings on their birthdays.
PRIMARY CONSIDERATION 1 – Protection of the Australian community from criminal or other serious conduct
In considering the nature and seriousness of the Applicant’s conduct Direction 99 requires I have regard to the factors set out in paragraph 8.1.1(1) of the Direction:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
For the purposes of this decision, the Applicant has three criminal offences beginning with a 16 May 2002 conviction in the District Court of New South Wales of dangerous driving occasioning death – drive manner dangerous-SI (the 2000 offence).[12] The sentence relates to an accident which occurred in August 2000. The sentencing remarks are not before the Tribunal, but the New South Wales Police facts state the Applicant was driving his vehicle in August 2000:
When approaching the intersection [street name] the traffic control light signals erected at the intersection and facing the [Applicant] changed from amber to red. The [Applicant] did not slow down and stop his vehicle at the stop line but entered the intersection against the red traffic control light signal. As a result of this, the front portion of the defendant's vehicle collided with the nearside of a [vehicle] sedan … [that] was in the process of making a right hand turn … into [Street] at the time of the collision.[13]
[12] G6, p.84.
[13] Exhibit 9A.
The Court imposed a sentence of periodic detention for two years, with a non-parole period of 15 months and disqualified the Applicant from driving for three years. In sentencing the Applicant, the Sentencing Judge took into account offending for which the Applicant had pleaded guilty to and were to be taken into account on Form 1, being three counts of dangerous driving occasioning grievous bodily harm – drive manner dangerous-T1.[14] In Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs the Federal Court held that the offending (and requisite guilty pleas) taken into account on Form 1 are not to be taken to be conviction for any purpose.[15] As such, the Tribunal cannot have regard to an offence which, as a result of the statutory provisions, the Applicant is taken never to have been convicted and I have not taken the Form 1 offences into account for the purposes of this decision.
[14] G6, p.84; G7, p.90-93.
[15] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468, at [53]-[54].
On 7 February 2005, the Applicant was convicted in the Local Court of New South Wales of Drive while disqualified from holding a license (the 2004 offence). The conviction related to offending which occurred on 24 December 2004 and resulted in the Applicant being sentenced to nine months imprisonment with a non-parole period of six months, which was suspended upon him entering into a good behaviour bond.[16]
[16] G6, p.84.
On 16 December 2022, the Applicant was convicted in the Local Court of New South Wales of Negligent driving (occasioning death) - 1st offence for which he was sentenced to a term of imprisonment of 12-months with a non-parole period of nine months and disqualified from driving for three years (the 2019 offence).[17] The conviction related to an offence in March 2019 where the Applicant collided with a motorcycle, causing the death of the rider. Acting Magistrate McIntosh acknowledged that the victim was not licensed to ride a motorcycle and “That due to significant THC and delta 9 THC acid concentration in the deceased, impairment of driving skills, such as perceptions, judgement of speed and distance and reaction times, would have been expected in [the victim] at the time of the collision, although impairment may have been slight”.[18] His Honour found that there was no evidence that the victim had been riding his bike over the speed limit, stating:
It is clear, in my view, in light of there being approaching vehicles, that the [Applicant] did not keep a proper lookout. When I consider all the evidence, including the relevant matters set out in section 117(3), the only inference open is that when the [Applicant], after stopping, drove from the turning lane…he was not keeping a proper lookout, and was not driving with due care and attention; that he thus departed from the standard of care for other road users, to be expected of an ordinary, prudent driver in the circumstances.[19]
[17] Ibid.
[18] Exhibit 9C, p.25-26.
[19] Ibid, p.29.
The Applicant has traffic infringements which are set out in the Respondent’s SFIC as follows:
· On 3 March 2019: exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected) (school zone);
· on 14 April 2015: not stop at red arrow (camera detected);
· on 13 December 2009: exceed speed limit by not more than 10 km/h whilst driving a motor vehicle; and
· on 6 February 1997: exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle.[20]
[20] Respondent’s Statement of Facts, Issues and Contentions (SFIC), [21]; Supplementary G-Documents, S6, p.15-16.
When completing incoming passenger cards on 8 June 2017 and 22 November 2018 the Applicant did not declare his criminal history.[21]
[21] G29, p.247-248.
The consequences of the Applicant’s offending were the deaths of two people. The Minister submits, and I accept, that individually and cumulatively, the Applicant’s offending is objectively extremely serious. I note also that the Applicant was sentenced to a term of imprisonment which is the last resort in the sentencing hierarchy.[22] I am satisfied that the Applicant knowingly did not acknowledge his offending on two incoming passenger cards and note that the Australian government considers not disclosing prior offending serious.
[22] Pavey v Minister for Home Affairs [2019] AATA 4198, at [44].
I find that the nature of the Applicant’s offending and other conduct weighs heavily against revoking the cancellation of his visa.
The risk to the Australian community
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The Respondent submits that the Applicant’s offending and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated is unacceptable.
I find that should the Applicant re-offend in a similar way to his previous offences it would have the potential to cause death, serious injury, and psychological harm to members of the Australian community.
The likelihood of further criminal or other serious conduct
The Applicant says he is remorseful for his offending and will not drive again should he be returned to the community. In his evidence the Applicant acknowledged that his actions were wrong, and that two lives were lost as a consequence. He said he has changed, and the Tribunal can be confident he will not re-offend.
At the hearing, the Applicant was asked about the 2005 conviction for driving without a license. He explained that the offending occurred on Christmas eve. His niece was at his house, and she had a toothache which caused ‘uncontrollable crying’. The Applicant wanted to get the child to her mother’s house so she could see a dentist before they closed for the Christmas break, which is why he drove that day. He accepted that his actions were dangerous and that he had no right to drive. He said he has learnt from the incident and if similar circumstances were to arise, he has now considered alternatives which did not require him to drive. In his statement of 17 May 2024, he confirmed he would call an ambulance rather than drive unlicensed.[23]
[23] Applicant’s Materials, Filed 17 May 2024.
The Applicant’s explanation is consistent with the account recorded by New South Wales Police, who observed the Applicant was driving with two children in the vehicle.[24] Though the offending was serious, the circumstances do not support a conclusion the Applicant was habitually driving while unlicensed.
[24] S19, p.32
On 24 April 2015, the Applicant was fined for not stopping at a red arrow.[25] The infringement was camera detected, and the Applicant said his brother was driving his vehicle at the time. He explained that his brother paid the fine, but the infringement remained on the Applicant’s driving record, which I accept.
[25] G7, p.91.
The Applicant gave evidence he had been told that the sentence of periodic detention he received for the 1999 offence did not count as a criminal conviction as he had not spent time in prison. In a written statement he indicated that the question asked on the incoming passenger card was confusing because as he took the wording to mean criminal convictions in the ‘present tense’ rather than ‘referring to the past’. I am not satisfied his explanation adequately accounts for his failure to declare his offending.[26]
[26] G24, p.193.
In his statement of 17 May 2024, the Applicant claims to have experienced ‘ongoing regret’ from the day of the first accident in 2000. The Applicant considers that the victims of his offending will be part of his life until he dies. When he thinks of the victims’ families and loved ones, ‘it always saddens’ him.[27]
[27] Applicant’s Materials, Filed 17 May 2024.
The Applicant was challenged at the hearing about his statement of 15 November 2023 in which he appeared to imply that the victim of the 2019 offence was in part responsible for the accident, when he wrote:
It was unexpected accident. I would stop driving if I knew that someone would die. The person who died did not have a driving license and he was definitely under the influence of illegal drugs. I believe, even though I spent legitimate time to look around, to ensure that it was clear for me to proceed driving, but I should spent longer time than the usual expected time to avoid the accident. My heart as a Christian is sanctified by God. I fear God than ever. I have no doubt in my mind that God knows that I never intend to hurt anyone.[28]
[errors in original]
[28] G24, p.190-191.
The Applicant gave evidence consistent with his statement of 17 May 2024 in which he wrote in relation to 2019 offence:
I did not see the motorcycle coming towards my vehicle, and I did not collide with the motor cycle head to head. The motorcycle was running into the passengers’ side of my vehicle. I was on legal speed at the time acknowledged by the traffic officials. I stopped my vehicle as expected before I drove off.
Is this a sign of unremorseful that I repeated my true experience, of what was happening in the scene? Even one of the witnesses kept stating during the hearing, that he saw my vehicle stopping, and he saw the victims’ motor cycle running too fast to stop. I did not see the motorcycle coming or else I would stop regardless. I am also a victim!
…It has saddened me, that when I voice my experience of the accident, I am told that I am not remorseful! I will forever regret driving on those particular days, because two lives died [sic].[29]
[errors in original]
[29] Applicant’s Materials, Filed 17 May 2024.
In sentencing the Applicant for the 2019 offence, Acting Magistrate McIntosh noted that a pre-sentence report under the heading of attitudes stated:
Mr Mautofu did not accept full responsibility for his offending. He minimised his level of culpability and blamed the victim by claiming that he was allegedly unlicenced and under the influence of illicit substances.[30]
[30] G7, p.92.
His Honour accepted that the Applicant made the comments to a community corrections officer in light of him having defended the case from the outset. The report stated:
While Mr Mautofu denied responsibility for his offending, he offered empathy for the victim and his family, and acknowledged their grief and trauma around the accident.[31]
[31] Ibid, p.93.
His Honour said that the Applicant attended the traffic offender’s program which he completed and had written a letter of apology to the Court expressing his remorse. He also noted a sentencing assessment report of 14 December 2022 found that the Applicant had been assessed at a Tier 1 Low risk of re-offending according to the Level of Service Inventory- Revised (LSI-R).[32]
[32] Exhibit 9C.
In addition to completing the Traffic Offender Intervention Program in December 2022, the Applicant participated in the Positive Lifestyle Program while in prison, and I note the Respondent contends this is insufficient rehabilitation to ameliorate the risks posed by the Applicant’s offending.[33]
[33] G12, p.119.
The Applicant plans not to obtain another driver’s license and writes in his May 2024 statement that he does not intend to drive even if he were licensed and permitted to do so. Though he has driven subsequent to the 2019 offence, he claims to have come to the realisation while in prison that he should not drive again. He said he had been thinking about this for some time, an account that was confirmed by Reverend Nau Taitusi Ahosivi who is serving as Chaplain at NSW Corrective Services. Reverend Ahosivi provided a statement and gave evidence at the hearing, during which he confirmed having spent time with the Applicant while he was in prison.[34] Reverend Ahosivi told the Tribunal he advised Applicant not to drive again and told him so in his capacity as a chaplain. Reverent Ahosivi trusts that he will maintain his commitment.
[34] Applicant’s Materials, Filed 17 May 2024.
Reverend Ahosivi also confirmed at the hearing he will support the Applicant to put in place measures which will ensure he does not drive and relies on alternative transport instead.
Despite some indications he did not accept full responsibility for his actions, I am satisfied that the Applicant is sincerely remorseful, and his actions weigh heavily on his conscience. I accept his determination not to drive again is genuine and having regard to the LSI-R assessment that his is a low risk of reoffending, I find there is a low risk that the Applicant will engage in further offending.[35]
[35] Exhibit 9C.
Protection of the Australian community - Conclusion
The Applicant’s offending, though infrequent, has had devastating consequences. The Applicant has accepted his part in the two accidents which claimed the lives of two people. Although the risk of reoffending is low, the nature of the harm that would be caused to the Australian community is such that this primary consideration weighs against revocation of the cancellation decision and is afforded significant weight.
PRIMARY CONSIDERATION 2 – Family violence committed by the non-citizen
There is no evidence that the Applicant has engaged in conduct that constitutes ‘family violence’, therefore, this consideration is not given any weight in favour or against revocation.
PRIMARY CONSIDERATION 3 – The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents, and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.
The Applicant has lived in Australia since moving here at 21 years of age. He has spent a significant portion of his life in Australia, though his formative years were spent in Tonga. His immediate family including his mother, wife, minor child and adult daughter reside in Australia. Regarding his mother, the Applicant writes in a statement of 15 November 2023:
My mother is 96 years old. She is originally from Tonga. She has no one to look after her. I have looked after my parents since 1994 to today. My father had died, and I have continued to support my mother financially to date, such as paying for her food and other necessities. She is so fragile, and currently living with my wife and daughters whilst I was in jail, and whilst I am in Villawood detention centre.[36]
[36] G24, p.194.
As the Applicant’s mother holds a bridging visa and does not currently have a right to remain permanently in Australia, limited weight is afforded to her interests.
The Applicant’s wife, Halamehi Mautofu, gave evidence of suffering significant hardship because of the Applicant’s absence. The Applicant was the sole breadwinner in the family, and she has been required to step in as the primary carer for both his mother and their minor child. Halamehi Mautofu has a medical condition which currently prevents her from working and fears she may lose their home as she is unable to pay bills and their mortgage.
Despite having previously indicated they may accompany the Applicant to Tonga should his visa remain cancelled, the Applicant’s wife and adult daughter confirmed at the hearing they would remain in Australia. I accept this is the case.
The Applicant has two sisters and one brother living in Australia and a large extended family, though it is unclear how many of these family members reside in Australia and are Australian citizens. In an undated statement the Applicant’s brother Samisoni Mautofu confirms he has a strong bond with his brother, and he relies on the Applicant to lead their family.[37] In a statement dated 8 January 2024, the Applicant’s sister Monika Radosavljevic confirms that until his imprisonment, the Applicant was their mother’s carer and states their mother is very upset by his absence.[38]
[37] G20, p.151.
[38] G28, p.237.
The Applicant’s adult daughter Otolose Mautofu holds a part time job and has had to place her studies on hold in the Applicant’s absence.[39]
[39] G27, p.127.
More weight should be given to the time a non-citizen has resided in the community and contributed positively to the community. I accept the Applicant has a strong and longstanding connection to the community through his position as a church elder and his 30 years of employment in the printing industry. The Applicant also regularly conducts prayers with his extended family and is considered a father figure.
The Applicant has lodged a ‘petition’ signed by 353 Australian citizens or permanent residents requesting the cancellation decision be revoked. I consider this further evidence of the active role he plays in his church.[40]
[40] Applicant’s Materials, Filed 19 April 2024.
The Respondent acknowledges that the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. Given the length of time he has spent in the community, his positive contribution during that time and the close ties to his immediate and extended family, this primary consideration is afforded considerable weight in favour of revocation.
PRIMARY CONSIDERATION 4 – Best interests of minor children affected by the decision
Direction 99 requires the Tribunal to make a determination about whether refusal to revoke the cancellation of the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out the factors I must consider when assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person has abused or neglected the child, or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant and his wife are the adoptive parents of a two-year-old daughter, Child P, who was born in July 2022.[41] Child P currently lives at home with the Applicant’s wife.
[41] G13, p.127.
The Applicant and his wife have cared for Child P since she was born. Until his imprisonment, the Applicant performed all the expected household duties of a father, such as changing, feeding and caring for her when she could not sleep. Although the Applicant was imprisoned shortly after her birth in December 2022, he submits he and his daughter share a strong bond. Child P recognises him and visits him in immigration detention two times a week. Should his visa be returned, he intends to father Child P and work hard so he can afford to send her to a private school, as he did for his other daughter.
I accept that the Applicant has only a limited relationship with Child P but intends to resume his parental role should he return to the community. I agree with the Respondent’s submission that it would not be in Child P’s interest to have her move to Tonga with the Applicant and his wife, as this would impede her ability to maintain contact with her biological parents. However, as mentioned, the Applicant’s wife confirmed she would not return to Tonga with the Applicant should his visa remain cancelled. The Applicant indicated he would prefer Child P to remain in Australia irrespective of the outcome of his application.
The Applicant claims to play an important role in the lives of other children including his nieces and nephews, stating the entire extended family takes part in raising children in the Tongan community. When his nieces and nephews were young, he acted as a ‘second father’ to them and was running family prayers every day for his extended family every morning, as well as teaching the children how to perform prayers. He set out a list of individuals in his extended family which includes five minor children. Eliana born January 2019, Alina born August 2018, Mele born August 2021, Halloee born October 2021 and Amato born July 2018.[42] He said the list in not exhaustive, and I note the Applicant’s nephew Kelepi Mautofu gave evidence it is in the interests of his four daughters - aged 3, 8, 10 and 13 - that the Applicant remains in Australia. I acknowledge the Applicant’s leadership of his extended family and his role in the religious education of the children. However, absent parental responsibility for the children, and with limited information about the nature of their relationship with the Applicant and likely effect that separation would have on them, limited weight is afforded to their interests.
[42] G13, Attachments F and F7.
Having regard to the evidence, this primary consideration weighs in favour of revocation, and the interests of Child P are afforded significant weight.
PRIMARY CONSIDERATION 5 - Expectations of the Australian community
Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs (FYBR) the Full Federal Court, decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration.[43] That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision-makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.
[43] FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Direction lists specific conduct which the Australian community as a whole, expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that the Applicant’s criminal conduct is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.
Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weigh in favour of not revoking the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other consideration B - Extent of impediments if removed
I am required to consider the extent of any impediments the Applicant may face if removed from Australia in establishing himself, and maintaining basic living standards in Tonga, in the context of what is generally available to other citizens of that country.
Should the Applicant return to Tonga he would likely do so without his wife and daughters. He would also be separated from other members of his extended family, including his siblings who reside in Australia. I consider that isolation from his family would cause emotional hardship for the Applicant. The Applicant would have access to services in Tonga, which the Respondent acknowledges may not be of equal accessibility or quality as those available in Australia. I note that although the Applicant is generally in good health, he has suffered from and been treated for depression.[44]
[44] G12, p.119; G13, p.125.
The Applicant migrated to Australia age 21 as a student. His only work experience in Tonga was as a farm hand when he returned to wait for his partner visa to be processed. I accept it may be difficult to find paid employment using his existing skills. The Applicant fears he would have nowhere to live because land cannot be bought or sold in Tonga but passed through inheritance to the eldest male heir. His family’s land has already been passed onto his elder brother’s sons.
Having regard to the evidence, I accept that the Applicant would face difficulties establishing himself in Tonga and this consideration is afforded weight in favour of revocation.
Other consideration D – Impact on Australian business interests
I am required to consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has been a full-time employee at IVE Print in the role of Print Assistant since its inception in 2017. A letter from the Chief Operating Officer Richard Clark dated 11 May 2023 states the Applicant ‘is a highly skilled operator of specialised equipment’ and one of a ‘handful of carefully chosen founding employees’, whose experience was key to training new staff.[45] The Applicant gave evidence he is the most experienced operator of a ‘wheel stand’, and that IVE Print has committed to rehiring him should he be released into the community as they require a reliable and experienced person with his skillset to teach others how to use the machinery.
[45] G22, p.178.
In Arachchi v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 1311 Rangiah J found at [68] the requirement in paragraph 9.4.2 of Direction 90, which is analogous to 9.4.1 of Direction 99, was to consider any impact on Australian business interests, and that ‘The requirement is not confined to business interests of a particular scale or importance’.
I am satisfied that access to the Applicant’s particular skills and experience is in the business interests of IVE Print and this consideration weighs in favour of revocation.
CONCLUSION
Having considered the specific circumstances relating to the Applicant I am required to weigh-up the considerations to determine whether there is another reason to revoke the cancellation decision.
The primary consideration of the protection of the Australian community weighs in favour of not revoking the cancellation decision and is afforded considerable weight. Although the Applicant’s offending is limited, and the risk of further offending is low, further offending would have tragic consequences. The primary consideration of the expectations of the Australian community also weighs strongly in favour of not revoking the cancellation of the Applicant’s visa.
The Applicant’s wife and adult daughter will remain in Australia should he be returned to Tonga, as will most of his extended family. Accordingly, the primary consideration of the strength, nature and duration of the Applicant’s ties to the Australia weighs in favour of revocation. The best interests of minor children affected by the decision is afforded significant weight in favour of revocation, primarily on account of the impact it will have on Child P.
The extent of impediments the Applicant would face should he return to Tonga weigh moderately in favour of revocation. The impact on Australian business interests is limited but also weighs in favour of revoking the cancellation decision.
Having considered all the circumstances, I conclude that the risk to the Australian community and the expectations of the Australian community are outweighed by the other considerations.
Accordingly, I am satisfied that there is another reason to revoke the cancellation decision and the decision under review will be set aside.
DECISION
The reviewable decision dated 15 March 2024 is set aside and the mandatory cancellation of the Applicant’s visa is revoked.
I certify that the preceding 88 (eighty - eight) paragraphs are a true copy of the reasons for the decision herein of Member S Evans.
..............................[sgd]..........................................
Associate
Dated: 7 June 2024
Date(s) of hearing: 22 and 23 May 2024 Applicant: In-person Solicitors for the Respondent: J. Fyfe, MinterEllison
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